WHEREFORE, foregoing premises considered, the instant appeal is PARTIALLY GRANTED. The election returns in Precinct Nos. 17A/18A, 20A, 21A/21B, 30A/31A, 59A/60A, 122A/122B, 162A/163A, 169A, 173A/173B, 174A/174B, 192A, 202A, 204A and 207A, are hereby ordered INCLUDED in the canvass of returns for the vice-mayoralty position in Dumangas, Iloilo. The Municipal Board of Canvassers of Dumangas, Iloilo is hereby ordered to RECONVENE and PROCEED with the canvass of the said election returns and PROCLAIM the candidate who garners the most number of votes.
The election returns in Precinct Nos. 107-A, 114-A, 6A/6B, 55-A, 67A/67B, 116A/116B, 130A, 42A/43A, 90A/90B, 7A/7B and 208A/208B are hereby ordered EXCLUDED in the canvass of returns by the Municipal Board of Canvassers of Dumangas, Iloilo.
SO ORDERED.11
Sec. 17. Certificate of Votes as Evidence. - The provisions of Sections 235 and 236 of Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible in evidence to prove tampering, alteration, falsification or any anomaly committed in the election returns concerned, when duly authenticated by testimonial or documentary evidence presented to the board of canvassers by at least two members of the board of election inspectors who issued the certificate: Provided, That failure to present any certificate of votes shall not be a bar to the presentation of other evidence to impugn the authenticity of the election returns.
Sec. 16. Certificates of Votes. - After the counting of the votes cast in the precinct and announcement of the results of the election, and before leaving the polling place, the board of election inspectors shall issue a certificate of votes upon request of the duly accredited watchers. The certificate shall contain the number of votes obtained by each candidate written in words and figures, the number of the precinct, the name of the city or municipality and province, the total number of voters who voted in the precinct and the date and time issued, and shall be signed and thumbmarked by each member of the board. (Emphasis supplied)
MR. ZARRAGA. [I]n connection with Sections 16 and 17, on House Bill No. 4046, only insofar as it concerns the admissibility in evidence of the certificate of votes.
MR. PALACOL. Yes, Mr. Speaker.
MR. ZARRAGA. Under Section 17, the certificate of votes shall be admissible in evidence only when duly authenticated by testimonial or documentary evidence presented to the Board of Canvassers by at least two members of the Board of Election Inspectors who issued the certificate.
The presentation of the certificate of votes is, of course, during the proceedings. And said proceedings may be one, two or three months, probably even more, after the voting has taken place.
And under Section 16, will the certificate of votes be signed and thumbmarked by each member of the Board of Inspectors?
MR. PALACOL. Yes, Mr. Speaker.
MR. ZARRAGA. This Representation feels that this should be sufficient to consider the certificate of votes as duly authenticated, especially because at that time the members have just prepared said certificate and therefore, there should be no need to further require two members of the board subsequently because they may no longer be available to authenticate the certificate of votes.
This Representation would like to inquire from the Gentlemen if the distinguished sponsor will be willing to also amend Section 16 in such a way that the certificate of votes, when already signed and thumbmarked by each member of the board, shall be considered as duly authenticated and admissible in evidence in any subsequent proceedings.
In other words, we should already dispense with requiring two other members at a subsequent time, when they may no longer be present to authenticate a document which, in the first place, has already been signed and thumbmarked by each member of the board in accordance with the proposed Section 16 of House Bill No. 4046.
MR. PALACOL. The Gentlemen [are] assured that we are going to consider all these amendments during the period of amendments. And I always grant that the Gentlemen from Bohol will submit valuable amendments in order to ensure a clean and honest election.
MR. ZARRAGA. Thank you very much, Mr. Speaker. x x x27 (Emphasis supplied)
[A]fter a careful inspection of the contested election returns and other authentic copies of the same, this Commission finds sufficient basis for the exclusion of some of these returns for being tampered or falsified. The exclusion of the said returns is based on the following findings:
- In the election return for Precinct No. 107-A, an examination of the same shows that the tallies or taras for the fourth box or square for Respondent-Appellee Doromal [were] closed on the fourth vote;
- In the election return for Precinct No. 114-A, an examination of the same shows that the tallies or taras for the twelfth box or square for Respondent-Appellee Doromal [were] closed on the fourth vote;
- In the election return for Precinct No. 130-A, an examination of the same shows that the tallies or taras for the fifth and seventh boxes or squares for Respondent-Appellee Doromal were closed on the fourth vote;
- In the election return for clustered Precinct Nos. 6-A and 6-B, an examination of the same shows that the tallies or taras for the seventh box or square for Respondent-Appellee Doromal [were] closed on the fourth vote;
- In the election return for Precinct No. 55-A, an examination of the same shows that the tallies or taras for the sixth box or square for Respondent-Appellee Doromal [were] closed on the fourth vote;
- In the election return for clustered Precinct Nos. 67-A and 67-B, an examination of the same shows that the tallies or taras for the fifth box or square for Respondent-Appellee Doromal [were] closed on the fourth vote;
- In the election return for clustered Precinct Nos. 116-A and 116-B, an examination of the same shows that the tallies or taras for the eighteenth and nineteenth boxes or squares for Respondent-Appellee Doromal were closed on the fourth vote;
- In the election return for clustered Precinct Nos. 42-A and 43-A, an examination of the same shows that the tallies or taras for the twenty-first box or square for Respondent-Appellee Doromal [were] closed on the fourth vote;
Considering that a substantial number of these election returns have the same type of discrepancy, i.e., the taras were not closed on the fifth vote, the said election returns cannot be relied upon to determine the votes in the said precincts. Evidently, the methodical tampering of these returns permanently put in doubt their authenticity as valid bases for the results of the elections. Thus, they should be excluded from the canvass.29
SECTION 236. Discrepancies in election returns. -- In case it appears to the board of canvassers that there exists discrepancies in the other authentic copies of the election returns from a polling place or discrepancies in the votes of any candidate in words and figures in the same return, and in either case the difference affects the results of the election, the Commission, upon motion of the board of canvassers or any candidate affected and after due notice to all candidates concerned, shall proceed summarily to determine whether the integrity of the ballot box had been preserved, and once satisfied thereof shall order the opening of the ballot box to recount the votes cast in the polling place solely for the purpose of determining the true result of the count of votes of the candidates concerned. (Emphasis supplied)
Sec. 237. When integrity of ballots is violated. -- If upon the opening of the ballot box as ordered by the Commission under Sections 234, 235 and 236, hereof, it should appear that there are evidence or signs of replacement, tampering or violation of the integrity of the ballots, the Commission shall not recount the ballots but shall forthwith seal the ballot box and order its safekeeping.
Endnotes:
1 An Act Introducing Additional Reforms in the Electoral System and For Other Purposes. Effective: January 5, 1988.
2 Batas Pambansa Blg. 881, effective: December 3, 1985.
3 Rollo, pp. 68-72. The Resolution was adopted by Acting Chairman Resurreccion Z. Borra, Commissioners Florentino A. Tuason, Jr., Romeo A. Brawner, Nicodemo T. Ferrer and Moslemen T. Macarambon. Commissioner Rene V. Sarmiento dissented.
4 Id. at 33-42; penned by Commissioner Nicodemo T. Ferrer. Presiding Commissioner Florentino A. Tuason, Jr. concurred in a separate opinion. Commissioner Rene V. Sarmiento dissented.
5 These were the election returns from Precinct Nos. 204-A, 207-A, 202-A, 107-A, 169-A. 114-A, 20-A, 130-A, 174-A/174-B, 6-A/6-B, 55-A, 162-A/163-A, 67-A/67-B, 90-A/90-B, 21-A/21-B, 7-A/7-B, 208-A/208-B, 173-A/173-B, 116-A/116-B, 59-A/60-A, 42-A/43-A, 192-A, 112-A/112-B, and 30-A/30-B.
6 The term tara refers to the lines representing one vote in the counting of votes at the precinct level as provided in Section 210 of the OEC, viz:
Sec. 210. Manner of counting votes - x x x
Each vote shall be recorded by a vertical line, except every fifth vote which shall be recorded by a diagonal line crossing the previous four vertical lines. x x x
In Patoray v. Commission on Elections, [319 Phil. 564, 569 (1995)], we used the term taras thus:
We hold that the COMELEC's Second Division correctly ordered the exclusion of Election Return No. 661290 (Precinct No. 16), it appearing that it contained a discrepancy between the "taras" and the written figures. In addition, however, the COMELEC's Second Division should have ordered a recount of the ballots or used the Certificate of Votes cast in the precinct in question to determine the votes for each of the parties in this case. (Emphasis supplied)
7 There were seven (7) copies of the election returns prepared by the BEI. These were distributed in accordance with Section 1 of RA 8173:
SECTION 1. Section 27 of Republic Act No. 7166, as amended by Republic Act No. 8045, is hereby further amended to read as follows:
SEC. 27. Number of Copies of Election Returns and their Distribution. -- The Board of Election Inspectors shall prepare in handwriting the election returns in their respective polling places, in the number of copies herein provided and in the form to be prescribed and provided by the Commission.
The copies of the election returns shall be distributed as follows: x x x
(b) In the election of local officials:
(1) The first copy shall be delivered to the city or municipal board of canvassers;
(2) The second copy, to the Commission;
(3) The third copy, to the provincial board of canvassers;
(4) The fourth copy, to the dominant majority party as determined by the Commission in accordance with law;
(5) The fifth copy, to the dominant minority party as determined by the Commission in accordance with law;
(6) The sixth copy, to a citizens' arm authorized by the Commission to conduct an unofficial count:
Provided, however, That the accreditation of the citizens' arm shall be subject to the provisions of Section 52(k) of Batas Pambansa Blg. 881; and
(7) The seventh copy shall be deposited inside the compartment of the ballot box for valid ballots.
8 Records, vol. I, pp. 180-208.
9 Id.
10 Entitled "In the Matter of the Appeal from the Rulings of the Board of Canvassers of Dumangas, Iloilo, In BOC Case Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25".
11 Rollo, p. 42.
12 Id. at 258-262.
13 Id. at 127-129.
14 Id. at 130-183.
15 Information Technology Foundation of the Philippines v. Commission on Elections, 464 Phil. 173, 190 (2004).
16 Supra note 6 at 568-569.
17 Id. at 571.
18 368 Phil. 277, 290 (1999).
19 Id.
20 Records, vol. I, p. 64.
21 Id. at 68.
22 Id. at 70.
23 The unjustified refusal of the BEI to issue a certificate of votes is an election offense under Section 27(c) of RA 6646:
Sec. 27. Election Offenses. - In addition to the prohibited acts and election offenses enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense: x x x
(c) Any member of the board of election inspectors who refuses to issue to duly accredited watchers the certificate of votes provided in Section 16 hereof.
24 Pineda stated in her affidavit, thus:
That after the counting of votes, I, Aida Pineda personally indicated with my handwriting the votes of candidates for the position of, among others, Vice-Mayor and made the members of the Board of Election Inspectors (BEI) sign the same. The votes are as follows:
c. Vice-Mayor1. Hernan Biron, Jr. thirty one 31
2. Rose Doromal one hundred eight 108
Attached is a copy of the Certificate of Votes that I (Aida Pineda) personally prepared for clustered precinct 208A as Annex "A" and made an integral part of our affidavit.
That I, Aida Pineda, presented the Certificate of Votes that I prepared to the Chairman of BEI, Matias Eugenio Piosca but he refused to sign the said Certificate despite my insistence that he is obliged to do so under the law.
That we were surprised when we learned that the votes for Vice-Mayor Candidate Rose Doromal increased to 118 from 108 votes or was padded with ten votes in the Election Return prepared by member of BEI Darwin B. Lico.
That before I presented the Certificate of Votes (Annex "A") to the Chairman of the BEI, Matias Eugenio Piosca I, Aida Pineda double-checked the Certificate of Votes that I prepared and I determined that the votes especially for Vice-Mayor Candidate Rose Doromal was accurate at 108 votes.
That despite my presentation of the authority given by the party to get its copy of the Election Returns, the BEI did not give me the copy of the Election Returns intended for the Dominant Majority Party. (COMELEC records, vol. I, p. 299)
25 Section 16. Certificates of Votes. - After the counting of the votes cast in the precinct and announcement of the results of the election, and before leaving the polling place, the board of election inspectors shall issue a certificate of votes upon request of the duly accredited watchers. The certificate shall contain the number of votes obtained by each candidate written in words and figures, the number of the precinct, the name of the city or municipality and province, the total number of voters who voted in the precinct and the date and time issued, and shall be signed and thumbmarked by each member of the board. The certificate shall be accomplished in duplicate with the use of carbon paper. The original copy shall be issued to the watcher and the duplicate shall be kept in the custody of the chairman of the board. Refusal on the part of the board of inspectors to issue such certificate shall constitute an election offense punishable under the Omnibus Election Code.
26 Section 17 of HB 4046 is of the same wording as Section 17 of RA 6646.
27 Records, House 8th Congress (December 7, 1987).
28 Records, vol. II, pp. 57, 59-60.
29 Rollo, pp. 36-37.
30 Casimiro v. Commission on Elections, 253 Phil. 461, 471 (1989).
31 Aratuc v. Commission on Elections, 177 Phil. 205, 235 (1979); Pimentel, Jr. v. Commission on Elections, 224 Phil. 260, 283 (1985).
32 Aratuc v. Commission on Elections, id.
33 Casimiro v. Commission on Elections, supra note 30.
34 Duhina and Demadante stated in their joint affidavit, thus:
That before the members of the Board of Election Inspectors (BEI) finished the preparation of the Election Returns on May 14, 2007, there was a brownout in the precinct (Precinct No. 107A) for not less than thirty (30) minutes.
That we cannot clearly see the making of the tallies on the Election Returns for Local positions and only relied on the figures contained in the total number of votes and were surprised when we were shown copies of the Election Returns for our party, LAKAS-CMD with missing tallies in the votes for candidate Rose Marie D. Doromal (less than five lines for one box); records, vol. I, p. 285.
35 Jiz-Deseo and Duller stated in their joint affidavit, thus:
That while the BEI was counting the votes, there was a brownout in the precinct (Precinct No. 114A) for not less than thirty (30) minutes.
That after the counting of votes was completed, we were requested to sign and thumb mark the original copy and all the other copies of the Election Returns even before the BEI affixed their signatures and thumb marks. However, since we were already tired and in a hurry to leave, we were not able to check and verify the tallies appearing on the other copies of the Election Returns.
That although we had the necessary authority, the BEI did not give us the copy of the Election Returns intended for the Dominant Majority Party.
That it was only later when we were shown a copy of the Election Returns for the Dominant Majority Party that we noticed that there were missing tallies (less than five lines per box) in the votes for Candidate Rose Marie D. Doromal in said copy; id. at 287.
36 Develos and De La Gante stated in their joint affidavit, thus:
That during the counting of votes [in Precinct No. 130A], the official (brown) tally sheet was not placed on the board for the public to see but was placed on a table.
That the third member of the Board of Election Inspector (BEI) was a municipal employee and not a teacher.
That we did not witness the making of the tallies on the Election Returns for Local Positions and only relied on the figures contained in the total number of votes and we were surprised when we were shown copies of the Election Returns for our party, LAKAS-CMD with missing tallies (less than five lines for one box) in the votes for candidate Rose Marie D. Doromal; id. at 288.
37 Deza III and Demonteverde stated in their joint affidavit, thus:
That during the counting of votes we were assigned to watch the member of the Board of Election Inspectors (BEI) putting the official tallies on the Election Returns for Local Positions.
After the counting of votes was completed, we were requested to sign and thumb mark the original copy and all the other copies of the Election Returns intended for the Dominant Majority Party.
It was only later when we were shown a copy of the Election Returns for the Dominant Majority Party that we noticed that the tallies appearing in said copy the same were different from the tallies in the copy for the Dominant Majority Party were irregularly placed and there were missing tallies (less than five lines in the box) for candidate Rose Marie D. Doromal in said copy; id. at 290.
38 Alcanzarin and Dimzon stated in their joint affidavit, thus:
That I, Cecile Alcanzarin was assigned to watch the member of the BEI making the official tallies on the Election Returns for Local Positions. I was positioned in front of that member of the BEI making the official tallies since I was not allowed to position myself at the back of the BEI making it difficult for me to see the tallies on the Election Returns being made by the said members of the BEI.
That I, Cecile Alcanzarin, brought to the BEI's attention a discrepancy between the figures with votes for Vice-Mayoral candidate Hernan Biron, Jr. appearing in the tally sheet and in the Election Returns, which the BEI then corrected.
That after the counting of the votes were completed, the BEI asked us to sign and our thumb marks before the BEI even signed and thumb marked the Election Returns. The BEI also told us that the watchers could already leave the precinct.
That the member of the BEI making the official tallies on the Election Returns was positioned in a poorly lit place making it doubly difficult for me to see the tallies that he was making.
It was only later when we were shown a copy of the Election Returns for the Dominant Majority Party that we noticed that there were missing tallies (less than five lines in the box) for candidate Rose Marie D. Doromal in said copy; id. at 291.
39 Ventura stated in her affidavit, thus:
That during the counting I was assigned to watch the member of the Board of Election Inspector (BEI) writing the official tallies on the Election Returns for the Local Elections. However, I was not able to closely monitor the conduct of the tally and just relied on the total number of votes reflected in the Election Returns without scrutinizing the individual tallies.
That after the counting of votes was complete, the BEI requested the watchers to sign and thumb mark ahead of them.
The BEI did not give the copy of the Election Returns intended for the Dominant Majority Party to the party's authorized representatives.
That it was only later when I was shown a copy of the Election Returns for the Dominant Majority Party that I noticed that there were missing tallies (less than five lines per box) for the candidate Rose Marie D. Doromal; id. at 294.
40 Dedoroy and Ano stated in their joint affidavit, thus:
That after the counting of votes was completed, we were requested to sign and thumb mark the original copy and all the other copies of the Election Returns. However, we were not able to check and verify the tallies appearing on the copies of the Election Returns.
That it was only later when we were shown a copy of the Election Returns for the Dominant Majority Party that we noticed that there were missing tallies (less than five lines per box) in the votes for Candidate Rose Marie D. Doromal in said copy; id. at 302.
41 Section 179 of the OEC provides:
Section 179. Rights and duties of watchers. - Upon entering the polling place, the watchers shall present and deliver to the chairman of the board of election inspectors his appointment, and forthwith, his name shall be recorded in the minutes with a notation under his signature that he is not disqualified under the second paragraph of Section 178. The appointments of the watchers shall bear the personal signature or the facsimile signature of the candidate or the duly authorized representatives of the political party or coalition of political parties who appointed him or of organizations authorized by the Commission under Section 180. The watchers shall have the right to stay in the space reserved for them inside the polling place. They shall have the right to witness and inform themselves of the proceedings of the board of election inspectors, including its proceedings during the registration of voters, to take notes of what they may see or hear, to take photographs of the proceedings and incidents, if any, during the counting of votes, as well as of election returns, tally boards and ballot boxes, to file a protest against any irregularity or violation of law which they believe may have been committed by the board of election inspectors or by any of its members or by any persons, to obtain from the board of election inspectors a certificate as to the filing of such protest and/or of the resolution thereon, to read the ballots after they shall have been read by the chairman, as well as the election returns after they shall have been completed and signed by the members of the board of election inspectors without touching them, but they shall not speak to any member of the board of election inspectors, or to any voter, or among themselves, in such a manner as would distract the proceedings, and to be furnished with a certificate of the number of votes in words and figures cast for each candidate, duly signed and thumbmarked by the chairman and all the members of the board of election inspectors. Refusal of the chairman and the members of the board of election inspectors to sign and furnish such certificate shall constitute an election offense and shall be penalized under this Code.
Section 12 of R.A. No. 6646 modified and expanded the rights and duties of the watchers, viz:
Sec. 12. Official Watchers. - Every registered political party, coalition of political parties, and every candidate shall each be entitled to one watcher in every polling place: Provided, That candidates for members of the Sangguniang Panlalawigan, Sangguniang Panlungsod or Sangguniang Bayan or for city or municipal councilors belonging to the same slate or ticket shall collectively be entitled only to one watcher.
There shall also be recognized two principal watchers, one representing the ruling coalition and the other the dominant opposition coalition, who shall sit as observers in the proceedings of the board. The principal watcher shall be designated on the basis of the recommendation of the ruling coalition, represented by the political party of the incumbent elected district representative, and of the dominant opposition coalition, represented by the political party which performed best or which polled at least ten percent (10%) of the votes in the last national election.
A duly signed appointment of a watcher shall entitle him to recognition by the board of election inspectors and the exercise of his rights and discharge of his duties as such: Provided, however, That only one watcher of each of those authorized to appoint them can stay at any time inside the polling place.
The watchers shall be permitted full and unimpeded access to the proceedings so that they can read the names of those written on the ballots being counted with unaided natural vision, consistent with good order in the polling place.
In addition to their rights and duties under Section 179 of Batas Pambansa Blg. 881, the two principal watchers representing the ruling coalition and the dominant opposition in a precinct shall, if available, affix their signatures and thumbmarks on the election returns for that precinct. If both or either of them is not available, unwilling or should they refuse to do so, any watcher present, preferably with political affiliation or alignment compatible with that of the absent or unwilling watcher, may be required by the board of election inspectors to do so.
42 Copy 5 (i.e., copy of the dominant minority party) was submitted in evidence by petitioner before the MBC to controvert private respondent's claim that the subject returns were tampered.
43 As stated earlier, petitioner endeavored to submit Copy 3 of the subject election returns while the instant petition was pending resolution before this Court. However, this Court is not a trier of facts, and we cannot receive such documentary evidence at this late stage in the proceedings. If it were petitioner's intention to show that Copy 3 of the subject returns did not contain missing taras, then petitioner should have done so in the proceedings before the COMELEC itself. At any rate, even if we were to assume that the Copy 3 belatedly submitted by petitioners before this Court is authentic, we note that these copies are substantially of the same import as Copy 5 of the subject returns appearing in the records of this case.
44 Records, vol. I, p. 47 (Copy 4); vol. II p. 49 (Copy 5).
45 Id. at 58 (Copy 4); id. at 54 (Copy 5).
46 Id. at 78 (Copy 4); id. at 64 (Copy 5).
47 Patoray v. Commission on Elections, supra note 6 at 569.
48 See Olondriz, Jr. v. Commission on Elections, 371 Phil. 867, 872 (1999), where we upheld the decision of the COMELEC to open the ballot box pursuant to Section 236 of the OEC. The discrepancy between the written words vis-á -vis figures in the contested election return was 10 votes while the winning candidate won by a margin of 2 votes. Thus, it was necessary to open the ballot box to determine the true will of the electorate.
49 Records, vol. I, pp. 44, 48, 52, 58, 56, 62, 74 and 78.
50 Section 235. When election returns appear to be tampered with or falsified. - If the election returns submitted to the board of canvassers appear to be tampered with, altered or falsified after they have left the hands of the board of election inspectors, or otherwise not authentic, or were prepared by the board of election inspectors under duress, force, intimidation, or prepared by persons other than the member of the board of election inspectors, the board of canvassers shall use the other copies of said election returns and, if necessary, the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the returns are likewise tampered with, altered, falsified, not authentic, prepared under duress, force, intimidation, or prepared by persons other than the members of the board of election inspectors, the board of canvassers or any candidate affected shall bring the matter to the attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass.
51 453 Phil. 277, 290 (2003). In Lee, we ruled:
The lack of merit of petitioner's arguments notwithstanding, the COMELEC, in ordering the exclusion of the questioned return, should have determined the integrity of the ballot box, the ballot-contents of which were tallied and reflected in the return, and if it was intact, it should have ordered its opening for a recounting of the ballots if their integrity was similarly intact. (Emphasis supplied)
52 459 Phil. 1055, 1070-1071 (2003). In Balindong, we stated:
[B]ased on Section 235 of the OEC which this Court elucidated on along with Section 236 in Patoray v. COMELEC, in cases where the election returns appear to have been tampered with, altered or falsified, the prescribed modality is for the COMELEC to examine the other copies of the questioned returns and if the other copies are likewise tampered with, altered, falsified, or otherwise spurious, after having given notice to all candidates and satisfied itself that the integrity of the ballot box and of the ballots therein have been duly preserved, to order a recount of the votes cast, prepare a new return which shall be used by the board of canvassers as basis for the canvass, and direct the proclamation of the winner accordingly.
The COMELEC failed to observe the foregoing procedure. As admitted in its Order dated December 13, 2001, it examined only the election returns used by the MBC, omitting to take a look at the other copies of the questioned returns or ordering a pre-proclamation recount of the votes of the candidates affected. The failure to take either step renders the poll body's action consisting of the outright exclusion of the return for Precinct 80A and the award of 88 votes in the return for Precinct 47A/48A highly questionable.
The precipitate exclusion from canvass of the return for Precinct 80A resulted in the unjustified disenfranchisement of the voters thereof. This could have been avoided had the COMELEC availed of the other courses of action mentioned in the law, namely: the examination of the other copies of the return and the recount of the votes by the BEI. (Emphasis supplied)
53 463 Phil. 263, 290-291 (2003). In Dagloc, we ruled:
Outright exclusion of election returns on the ground that they were fraudulently prepared by some members or non-members of the BEI disenfranchises the voters. Hence, when election returns are found to be spurious or falsified, Section 235 of the Omnibus Election Code provides the procedure which enables the COMELEC to ascertain the will of the electorate.
The COMELEC, therefore, gravely abused its discretion when it excluded outright the subject election returns after finding that they were fraudulent returns. Instead, the COMELEC should have followed the procedure laid down in Section 235 of the Omnibus Election Code: x x x (Emphasis supplied)
54 G.R. No. 178456, January 30, 2008, 543 SCRA 157, 171-174. In Cambe, we reiterated:
In the instant case, Election Return No. 9601666 cannot be considered as regular or authentic on its face inasmuch as the total votes cast for the vice-mayoralty position, which is 288, exceeded the total number of the voters who actually voted (230) and the total number of registered voters (285). The COMELEC therefore is clothed with ample authority to ascertain under the procedure outlined in the Omnibus Election Code (OEC) the merits of the petition to exclude Election Return No. 9601666.
Sections 235 and 236 of the OEC read: x x x
x x x x
In the instant case, the MBC, without complying with Section 235 of the OEC, outrightly excluded Election Return No. 9601666. Worse, the COMELEC found nothing irregular in the procedure taken by the MBC. The precipitate exclusion from the canvass of the return for Precincts 66A and 68 resulted in the unjustified disenfranchisement of the voters thereof. (Emphasis supplied)